The appeal in Greyson v Fuller [2022] EWHC 211 (QB) has arrived and Foster J has confirmed that Mason v Laing was indeed excessively draconian. As such the failure to disclose a first medical report recommending a second report in accordance with paragraph 7.8B of the RTA Protocol before the second, did not mean that the report should be excluded.

The real issue was the meaning of the word ‘justified’, which took on an absolute nature according to defendants and HHJ Gosnell in Mason v Laing, that barred the evidence from being considered. Foster J held that:

“in my judgment the meaning of “justified” must be ascertained by reference to the fact that the sanction of failing to recover costs, is written through every part of the scheme as the default sanction for compliance failures… It is notable that where the Practice Direction [PD8B] gives power to exclude or include evidence, its terms are clear.”

Further paragraph 7.8 of the Protocol for non-soft tissue injuries used the word ‘justified’ in a way that did not sit with a different, more draconian meaning of the same word in paragraph 7.8B. This led to the conclusion that:

“Accordingly I agree with the Claimant that a medical report not being ‘justified’ per paragraph 7.8B(2) of the RTA Protocol goes to the risk of penalty in costs rather than admissibility of the medical report.” emphasis in original

It must be noted that this will be a diminishing problem in any event as a new paragraph 7.8C has been added which effectively replaces 7.8B(2). Putting aside the bizarre wording of 7.8C (that I frankly admit I am yet to really get my head around, go read it and let me know if you can work out why they chose to write it the way they did if you think I am joking) that fortified the judge’s decision on her construction of the scheme.

The decision also provides helpful guidance in relation to the ‘catch all’ escape route for claimants under PD8B paragraph 7.1(3):

The phrase [properly determine] imports a high bar for a Claimant to surmount; it excludes material that is merely “desirable”. The lack of the relevant evidence must mean the tribunal is so handicapped it would be forced to say, “I cannot properly decide this without those reports.” This will provide no difficulty in practice: setting out examples as notional parameters will not assist.”

As such, we can now see the back of these arguments that suggest the rough and ready nature of the Portal process means that a harsh line needs to be taken. The rules explicitly set out such consequences where needed. So as a final note, the wider ramifications of the decision is hopefully a return to some common sense. As the judge said at paragraph 51:

“I do not agree that the Protocol “trumps” the overriding objectives of a just determination of cases, but I accept the Rules are applied strictly. However, I disagree that the context compels the construction of those rules that [the Defendant] advances. I further do not accept that the Protocol compels abandonment of the overriding objective, although I accept that the rules are to be strictly applied…”.